Committee Reports > List of Committees > Joint > 1980 > Committee on the Secondary Legislation of the European Communities > Report No. 81 - Right of Residence

REPORT

Introduction

1. The Joint Committee has examined the amended proposal for a Council Directive on a right of residence for nationals of Member States in the territory of another Member State [COM (80) 385 final]. This is an amended version of the proposal made by the Commission originally in September, 1979 [COM (79) 215 final] and amended in the light of the Opinions of the European Parliament and the Economic and Social Committee. A further amendment to the original proposal which was not included in the amended version was also examined [COM (80) 649 final].

2. The proposal is based on Article 235 of the Treaty which enables the Council to take appropriate measures for the attainment of one of the objectives of the Community where the Treaty has not provided the necessary powers. In addition it is based on Article 56 (2) which appears in the Chapter dealing with the right of establishment i.e. right of self-employed and undertakings to pursue economic activities in Member States other than their own. Article 56 provides that Community measures shall not prejudice the applicability of national measures “providing for special treatment for foreign nationals on grounds of public policy, public security or public health.”.

3. A detailed examination of the proposal has been carried out for the Joint Committee by its Sub-Committee on Social, Environmental and Miscellaneous Matters under the Chairmanship of Senator Mary Robinson. As well as considering memoranda received from the Departments of Justice, Health and Social Welfare the Sub-Committee discussed the proposal with representatives from the three Departments. The Joint Committee is indebted to Senator Robinson and her Sub-Committee for their work.

Contents of the Proposal

4. Freedom of movement and residence is already available to Community nationals covered by the Regulations and Directives relating to free movement of workers and those convered by the Right of Establishment provisions. At present nationals of Member States who wish to reside permanently in another Member State without pursuing any economic activity come under the general rules applicable to foreign nationals and are treated, as regards the conditions of their residence, as nationals of non-member countries and subject to the discretionary power of the host Member States. The aim of this draft Directive is to secure for adult (over 18) nationals of Member States and their families an inherent right of residence in another Member State irrespective of the pursuit of any economic activity. Family for the purpose of this proposal would include (a) spouse and relatives in descending line who are either dependant or under 18 and their spouses and (b) dependant relatives in the ascending line and those of their spouses. The amendment contained in Document COM (80) 649 final extends the notion of the family to include “any person whom the holder of the right of residence has an obligation to support or who is in practice dependant on the holder.”. The beneficiaries under the proposed Directive would be retired people, persons of independent means and students.

5. The proposal is restricted to questions of movement and residence and accordingly incorporates as far as possible the provisions adopted in respect of workers and self-employed. This involves in particular the following provisions:

(i)Right to leave the territory, Article 2,

(ii)entry documents, Article 3,

(iii)residence documents for members of the family who are not nationals of a Member State of the Community, Article 5 (3).

(iv)territorial scope of the right of residence, Article 7,

(v)the charges for issuing and renewing residence documents, Article 8, and

(vi)the documents to be produced for the issue of the residence permit, Article 6, with the exception of (b) a specific provision concerning the proof of subsistence.

Implications for Ireland

6. The European Communities (Aliens) Regulations, 1977 [S.I. No. 393 of 1977] set out the rights of entry and residence of certain categories of persons who are nationals of Member States of the European Community. If the proposals are adopted it will be necessary to amend these Regulations to include the categories provided for in the Directive. No changes would be required in Social Welfare or Health legislation.

Views of the Joint Committee

7. It does not appear to the Joint Committee that the adoption of the present proposal would pose any great problems for this country. The Committee has been informed that from 1st January, 1972 up to 31st October of this year 1,942 nationals of Member States have been issued with residence permits under the European Communities (Aliens) Regulations, 1972 and 1977. No application has been refused. The Appendix to this report gives the number of residence permits issued in respect of each Member State and the categories of persons to whom they were issued. However the totals are not necessarily the totals of “qualified” EEC nationals resident in the State since (a) persons born in Britain or Northern Ireland are not included and (b) an EEC national is not obliged to apply for a residence permit and it is known that a number of long-term residents in the State have not applied for formal residence permits.

8. In accordance with Article 4 (2) of the draft Directive Member States may withhold the right of permanent residence from persons who do not have sufficient resources to provide for their own needs and the dependant members of their families and Article 5 (1) would allow the right to be withdrawn after five years for the same reason. The resources required in order to be granted permanent residence may not be greater than the minimum subsistence level applicable under the law of Member States in respect of their own nationals.

9. The Joint Committee understands that there is no minimum subsistence level defined under Irish law and that in applying this provision in Ireland it is likely that the authorities here would require that persons seeking permanent residence in this country would have resources which would be at least sufficient for them not to require assistance under the Supplementary Welfare Allowance Scheme or the other social assistance schemes administered by the Department of Social Welfare.

10. The provision regarding the provision of proof of sufficient resources does not apply to students. It is difficult to establish what effect this would have in Ireland although it is not likely to be significant. Experience has shown to date that students do not avail of the various social assistance schemes to any significant degree.

11. A further category of persons who are also in effect exempted from the provision to supply proof of sufficient means are the members of the family of a person who possesses a permanent right of residence and the exemption applies even after the latter’s decease. This would result in some increase in the number of claims for non-contributory widows’ and orphans’ pensions but it is not envisaged that the increase would be very high.

12. The scheme administered by the Department of Social Welfare which would be mainly affected by the adoption of the Directive would be the Children’s Allowance Scheme and the Free Travel Scheme as entitlement under these schemes is not dependant on satisfying a means test or social insurance contribution scheme. It is likely that the Free Travel Scheme which is mainly for persons aged 66 or over would be more affected than the Children’s Allowance Scheme as the main group who would benefit from the adoption of this Directive are those who are retired. It is not considered likely, however, that there would be any major cost implications for either Scheme.

13. The Joint Committee has been informed that the implications as far as health services are concerned would be minimal especially if the application of Article 4 (2) was geared at a rate higher than the guidelines used for the grant of medical cards. All residents are entitled to the same range of health services irrespective of country of origin.

14. There is provision in the proposal for a review within six years of the application of the obligation to furnish proof of sufficient resources to determine whether this requirement can be terminated. United Kingdom nationals already have a right of residence in this country without any restriction as to resources and the Joint Committee has been informed that this has not resulted in any significant burdens being placed on the schemes administered by the Department of Social Welfare.

15. The Joint Committee has no objection to the adoption of the amended proposal and the amendment.

(Signed) ALEXIS FITZGERALD,

Chairman of the Joint Committee.

16 December, 1980.